On February 17th, John Kelly, Secretary of the Department of Homeland Security (“DHS”), issued two memoranda to implement the Executive Orders entitled, “Enhancing Public Safety in the Interior of the United States,” and “Border Security and Immigration Enforcement Improvements.” The two Executive Orders were issued on January 25, 2017. The implementation memoranda are draconian. For example, the Interior Enforcement Memo instructs the personnel of the Department of Homeland Security (DHS), regardless of the individual’s basis for removability from the United States (US), to include as priorities those who have “committed acts which constitute a chargeable criminal offense” or “in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.”

DHS personnel are also instructed to arrest or apprehend foreign nationals whom an immigration officer has “probable cause” to believe are in violation of the “immigration laws” as well as refer appropriate cases for “criminal prosecution.” The third focus of potential enforcement relates to those who have committed acts, which constitute a chargeable criminal offense (not even arrested with a pending case).

In addition, the Director of Immigration and Customs Enforcement (ICE), the Commission of Customs and Border Protection (CBP), and the Director of US Citizenship and Immigration Services (USCIS) are all instructed to issue guidance and regulations, where required by law, to assess and collect all fines and penalties, which DHS is authorized to impose, from foreign nationals AND from those who facilitate their unlawful presence in the US.

So, what fines might this provision refer to? As to employers, the focus certainly will be fines for I-9 Form Compliance, which were increased in August of 2016.

We will see on how soon DHS can onboard the additional 10,000 officers and agents authorized to be hired as well as enlist local law enforcement’s assistance via §287(g) agreements. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 added §287(g) to the Immigration and Nationality Act, as amended (INA). This provision authorizes the Director of ICE to enter into agreements with state and local law enforcement agencies, which allow designated officers to perform immigration law enforcement functions, provided that the local law enforcement officers receive appropriate training and are under the supervision of ICE officers.

In December of 2012, ICE had announced that it would no longer renew its §287(g) agreements because Secure Communities and other programs were a more efficient use of limited resources to focus on priority cases. Secure Communities was created to effectively identify and facilitate the removal of criminal aliens in the custody of state and local law enforcement agencies. Under Secure Communities, participating jurisdictions submitted arrestees’ fingerprints not only to criminal databases, but to immigration databases as well, allowing ICE access to information on individuals held in jails.

The §287(g) program was subject to severe criticism for engendering widespread racial profiling. DHS ended Secure Communities in 2014 and replaced it with the Priority Enforcement Program in 2015. DHS conceded that the “Secure Communities” name alone, “has become a symbol for general hostility toward the enforcement of our immigration laws..” and, “ A number of federal courts have rejected the authority of state and local law enforcement agencies to detain immigration pursuant to federal detainers issued under the Secure Communities program.”

What to do?

It is important for nonimmigrants and immigrants to be able to show documentation of legal status. Remember that §264(e) of the INA can be used to impose a criminal penalty on nonimmigrants and immigrants (green card holders/legal permanent residents) over the age of eighteen who do not have their registration documents with them in their personal possession at all times. The penalty that “shall” be imposed is a misdemeanor that upon conviction for each offense, provides for a fine not to exceed $100.00 or imprisonment for not more than 30 days, or both.

What are registration documents? Here are some of the main examples set forth in 8 CFR §264.1(b):

  • I-94 Arrival- Departure Record – Governs period of admission to the U.S. and includes the DHS admission or parole stamp in a foreign passport. Thus, a registration document is sufficient with the passport and stamp alone without printing out an electronic I-94 record, which is available for air and sea port admissions. At the land border, a paper I-94 admission record is still available. It is important to check the electronic I-94 record and history for accuracy, since an overstay can subject the foreign national to removal from the US and visa cancellation. The electronic I-94 record is also important for Form I-9 completion in many situations.
  • I-551 Permanent Resident Card
  • I-766 Employment Authorization Card
  • I-186 Mexican Border Crossing Card
  • I-95 Crewman’s Landing Permit
  • I-184 Alien Crewman Landing Permit and Identification Card
  • I-862 Notice to Appear
  • I-221 Order to Show Cause and Notice of Hearing

What about the undocumented population?

The Border Security Memo directs DHS to issue regulations to increase the application Expedited Removal (ER) to anyone who has not been continuously present in the US for the two years before apprehension and who is encountered ANYWHERE in the US (not just within 100 air miles of the border and 14 days after entry). The ER process allows DHS to deport individuals in as little as 24 hours without a right to appear before an immigration judge or to obtain or call legal counsel. So, it is critical to carry documentation of physical presence in the US. Examples of documentation of physical presence are:

  • Rent receipts or utility bills
  • Employment records (pay stubs, W-2 Forms, etc.)
  • School records (letters, report cards, etc.)
  • Military records (Form DD-214 or NGB Form 22)
  • Official records from a religious entity confirming participation in a religious ceremony
  • Copies of money order receipts for money sent in or out of the country
  • Passport entries
  • Birth certificates of children born in the U.S.
  • Dated bank transactions
  • Automobile license receipts or registration
  • Deeds, mortgages, rental agreement contracts
  • Tax receipts, insurance policies

The Enforcement and Border Security Memoranda were just issued and obviously staffing will be important for DHS as well as regulatory changes in some cases to carry out this new mission to the extent desired, but due to the severity of these Memoranda -- it is critical that all nonimmigrants and immigrants have a heightened awareness and concern regarding maintaining and documenting their status. Employers should expect more enforcement actions regarding worksite compliance. As to the undocumented population, there is no relief in sight but carrying documentation to prove physical presence in the US will at least provide some basis for review by enforcement officers to show that ER should not be applied and allow the foreign national access to immigration proceedings assuming the regulatory changes are successful.